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For Immediate Release
January 26, 2012

Recess Appointments at Judiciary Executive Business Meeting

Prepared Statement of Senator Chuck Grassley
Senate Committee on the Judiciary
Executive Business Meeting
Thursday, January 26, 2012

Mr. Chairman,

One year ago, as we met to organize this committee in the new Congress, I indicated that I would work in a cooperative manner to advance consensus nominees, announced my intent to engage in a robust effort to fulfill our oversight responsibilities, and pledged to proceed in a productive and respectful manner as we considered legislation before this committee.  

Looking back, I think we accomplished a great deal last year.  

The committee passed important legislation and confirmed a significant number of judicial and executive nominees.  I would note that even the Majority Leader recognized that we have done a good job on nominations and have accomplished quite a bit.  

We could have confirmed more nominees at the end of last year, had the President indicated that he would respect the practice and precedent on recess appointments.  

He would not give the Senate that assurance, so a number of nominations could not be confirmed and remain on the Executive Calendar.  

As it turned out, the President went on to violate the practice and precedent.

So now we enter this Session under circumstances that are quite different than last year.  

For starters, we will have to address the President’s unconstitutional appointments, made under the guise of “recess appointments.”  

I spoke at length on this matter last Monday, and will not repeat all of that here.  But I do want to make a few points.

The Constitution outlines two ways the President may make appointments.  

One is with the advice and consent of the Senate.  

Another provision allows the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.  

Given that the Senate was not in recess, it seems clear to me that advice and consent was required, but not obtained.

It is for the Senate to determine its own rules and procedures, including the designation of when it is in recess.   

This simply is not a matter that is within the purview of the Executive Branch.  

These so-called recess appointments break a longstanding tradition.  They violate precedents followed as recently as 2008, with President Bush.  

The Office of Legal Council opinion, that concluded the President could make these appointments, is unconvincing.  It relies on unpersuasive material.  And it misapplies cited authorities, particularly the 1905 report of this committee.  

The second circumstance that changes this year, as everyone is aware, is that this is a Presidential election year.  

The historical practice has been for work to slow down a great deal during such years.  This is, of course, the so-called “Thurmond Rule.”  

I would note that the Chairman has in the past stated: “The ‘Thurmond Rule’ is that after July or the nominating conventions no more judges will be confirmed in a Presidential election year unless there is consent.”  

In elaborating he explained, “Consent of the majority and minority leaders as well as the chairman and ranking member of the Judiciary Committee came to be the norm.”

He has also noted that “Historically, in the last year of an administration, consideration of nominations slows, the ‘Thurmond rule’ is invoked and vacancies are left to the winner of the Presidential election.”  

Of course there are inconsistent statements on both sides regarding the effect or timing of the so called rule.  

However, I would note that in May, 2007, a year prior to the Presidential election year, Senator Leahy referenced the Thurmond rule, noting that “it kicks in next April.”  

In March 2008, well before the political conventions that year, then-Chairman Leahy stated “It is a rule we still follow, and it will take effect very soon here.”  

I just wanted to remind my colleagues of the history regarding the historical practice and precedents of this committee in Presidential election years.

With regard to today’s agenda:

There are two nominees on the agenda for the first time, Mr. Paul Watford, nominee for the Ninth Circuit Court of Appeals, and Mr. Dennis Erby, to be United States Marshal for the Northern District of Mississippi.

We have a request on our side to hold Mr. Watford’s nomination for another week.  

But, we are prepared to move Mr. Erby today, and I believe we can do so by a voice vote.  

There’s one bill on the agenda and I have a request on our side to hold over S. 1925, the Violence Against Women Reauthorization Act.  

    In the past, VAWA has been reauthorized on a bipartisan basis.  It has had my support.  I hope that VAWA will be able to be reauthorized on a bipartisan basis this year, again with my support.

    Our staffs have had good discussions on a draft bill.  But we are not able to reach agreement at this time.  There are policy differences on items that have not been part of VAWA in the past that are just too great.

I understand that you will be marking up a bill that differs from S. 1925 as introduced.  The vehicle for markup will include a number of positive changes that came from suggestions that we made in the discussions.   I appreciate the efforts to narrow differences.
Next week, when we take the bill up, I expect that there will be amendments on our side.